It is a great pleasure to be giving the inaugural DCA/Constitution Unit lecture on Freedom on Information. I am delighted to be the first to do so. The Unit, and its Director Robert Hazell in particular, have a formidable reputation on constitutional reform - Robert gave evidence on Freedom of Information to the Select Committee - so he is not "just" an academic, he actually influences events.
What I want to do tonight is three things:
- to say something about what we're doing on Freedom of Information,
and perhaps more importantly, why we're doing it
- to say something about how Freedom of Information has gone so far since
its implementation date of January 1 - including something on the Government's
decision we have announced today on the Attorney-General's advice on
Iraq
- and to say something about the challenges ahead, including about how we
might assess FOI in the future as it beds down to be part of the fabric of
how we do government in this country
The Freedom of Information Act 2000 was implemented on January 1, 2005. New Year's Day is traditionally a day for fresh starts. For promises of changes in behaviour. For New Year's Resolutions.
By the end of January, many of them lie in tatters. No matter how well intentioned we all are, we know - often at the very point we make them - that many New Year's resolutions won't last beyond the end of the month.
Not this one. Freedom of Information is one New Year's resolution that is here to stay.
Because on this New Year's Day, Freedom of Information marked what I believe is a significant and hugely important change. And I am happy that expectations be created as to what that change will be. For the first time, giving individuals the right, the right in law, to see information held by government and by thousands of public bodies. A presumption of openness. A presumption that there is a general public interest in access to information.
This is a fundamental change. Not just a change in practice - though as I will show, it is certainly that. But a change in principle: a radical and lasting change in the relationship between citizen and government.
That change is in line with the overall programme of constitutional reform we have consistently pursued since this Government came to office in 1997.
Since 1997 we have been engaged in a wide-ranging project to bring citizens and the state closer together. To strengthen the connection between citizen and the state. And to bring our system of government into step with the values and aspirations of the public as they are today.
That's why we brought in devolution. That's why we've been reforming the House of Lords. That's why we brought in the Human Rights Act. And that's why we've introduced Freedom of Information. To modernise our government to match peoples aspirations about what they know about how they are governed. To help place power, wealth and opportunity in the hands of the many, not the few. Because of all those "fews" to focus on, it is the government that matters. That is what this government has always been about. That is what this government will continue to be about.
Freedom of information tends to be the kind of policy which is popular with political parties when in opposition. Curiously, enthusiasm for freedom of information tends to fade when parties come into government.
Not this government. On January 1, we took a major step. And I'm proud to be part of the Government which is introducing freedom of information in the UK.
So: what has happened so far? In the 25 days since freedom of information has been in force, what has taken place ?
It is of course too early to attempt to make a proper assessment. That will come later.
But I believe that based on what we've seen so far, I can say this: freedom of information is here. It is right. And it is working.
I believe that even in such a short time, freedom of information is making a difference. Right across the public sector, across very many of the 100,000 public bodies, the effects of freedom of information are beginning to be felt.
People have asked for details of schools admission policies. They have asked for the amounts that individual schools spend on new text books.
People who are waiting for operations in particular hospitals have asked about patient waiting lists. They have asked about the bed capacity of their local hospital.
People have asked about performance figures for their local authority recycling schemes. They have asked for information about their public library.
They have asked about pension funds. They have asked about attacks on teachers. They have asked about repairs to council properties. They have asked about car parking contracts.
And naturally they have asked in detail about the wallpaper on my walls!
So people have asked, with the exception of my last example, about a whole range of issues important to them and to their families. To their lives and their communities. That's what freedom of information is really about.
Of course, it hasn't quite been all like that. We didn't think it would be. We won't be providing a running commentary on FOI requests. But I thought it would be reasonable to give you an indication tonight of the kind and scale of the requests we have received in central government, which I emphasise is only one part of the state which is being affected by Freedom of Information.
Most are being handled by officials within departments. Some of the more demanding requests are being referred to my department for advice. Of those, about a third are from members of the public. Unsurprisingly, even more - about half - are from journalists. Even less surprisingly, the biggest single source of requests is from the Opposition. Freedom of information is about putting power in the hands of the people. Sadly, but not surprisingly, the Opposition are choosing to try to use it as a political football. So it's not too much of a shock to find that as many as 130 requests have come from the Shadow Cabinet. We made it clear that all requests will be dealt with in the same way, regardless of where they come from or why they have been asked. Motive doesn't matter. So the requests from the Shadow Cabinet will - of course - be dealt with in exactly the same way as we are dealing with all other requests.
Again, we will not normally be providing a running commentary on how FOI is working across government departments. But for the purposes of this lecture, I think it is interesting to note that the department which has received the largest proportion of requests - though this may well be for particular reasons - has been the National Archives, followed by Defence, and then by Education and Skills. In all so far, more than 2,600 requests for information under FOI have been received
So people have been making use of the legislation. They have been asking. Governments of course get asked for information all the time. FOI has certainly, and welcomely, increased those requests. Departments have 20 working days from receiving a request in which to respond to it. For the initial requests tabled as the Act was implemented, those 20 working days expire on January 31. I believe we will see very significant disclosures of information next week in response to many of these requests. Disclosures which I believe will show the Government striving to act correctly, to do the best for those who elected it. To do the best for the country.
People do want openness. But they want the government they have elected to get on with government too. Good government is open government. But good government is effective government too.
The legislation recognises this. Just as the legislation recognises the presumption of openness, and provides ways for that to be enacted and enforced, so too does the legislation recognises that for governments to govern, there must also be limits. No sensible correspondent or commentator seriously disputes this. No jurisdiction in the world which has freedom of information does not also have such limits, on areas like defence, and national security. I believe that people not only recognise the importance of such limits, but that they want to see them in place, and applied. Freedom of information is of course important. But it is not a means by which either our country should be placed at risk, or good government imperilled.
So any responsible freedom of information legislation needs to strike a balance. A balance between openness and effectiveness. Between correct disclosure, and correct retention. A balance that is, finally, determined not by the Government, the body against which the request is sought, but by the independent Information Commissioner and the independent Information Tribunal. For the scheme to work there must be an independent arbitral process, with someone independent ultimately striking the balance.
That's what we have seen today in practice. Again unsurprisingly, given the strong opinions, for and against, which the war in Iraq has produced in this country and elsewhere, one of the most common requests - certainly from journalists - was for the release under FOI of the Attorney General's advice to the Government on Iraq.
Now of course the reason why the Attorney General considered the use of force to be lawful is already known. On 17 March 2003, the Foreign Secretary submitted a memorandum to the Foreign Affairs Committee which explained the legal background. The legality of the Iraq conflict has been fully debated in both House of Parliament on a number of occasions. On each of those occasions, Ministers have given reasoned explanations of the Government's position. In addition, in view of the high degree of interest in the issue from both the public and the media, a perfectly legitimate interest, the Attorney General exceptionally gave a written answer to Parliament, also on 17 March 2003, setting out his view of the legal basis for the use of force.
With such extensive material already widely publicly available, the Government has always declined to give any further details of the Attorney General's advice. It must be right to maintain confidentiality between lawyer and client - whether it is a solicitor and someone buying a house, a barrister and someone appearing in court or, as in this case, the Attorney General and the Government.
Section 42(1) of the Freedom of Information Act provides that information is exempt if it could be the subject of a claim to legal professional privilege. This exemption clearly applies to the Attorney General's advice in this case. Other exemptions also apply, as we have made clear today. Accordingly, the Government has today responded to people seeking publication of this further advice under FOI by declining to do so.
Could I quote Stephen Irwin QC, who was chairman of the Bar Council at the time. He said on March 1 2004: "Were this advice to be published, it would leave future governments of whatever hue in difficulty when it comes to obtaining confidential legal advice on major matters of public or international law. That would be clearly against the public interest. It means the Government might not ask for advice when they should, or might not reveal all the facts when they do."
I agree. What we have announced today is in line with what we have consistently said about the Attorney General's advice. And in line with what we have consistently said too on freedom of information: that we are committed to openness, but that government must have the room to do the job it is elected to do.
So our decision on the Attorney General's advice is right: right about the issue, and right about the advice. Right about freedom of information, and I think right about ensuring good government for the country.
I have spent some time on this issue this evening because I believe it is important. It has also been a matter of considerable media interest during the day. On the basis of this, some will rush to judgement about freedom of information. I believe they would be wrong to do so.
An assessment of freedom of information certainly should not be made on the basis of one case alone. Freedom of information should eventually be assessed on the information it provides broadly, and especially on the information it provides proactively, as part of the normal way governments do their job. In other words, by the cultural change I am sure it will bring about.
Because legislation does not work just in terms of its precise measures, though that is important. It works too in the spirit of its measures - by the change in the climate of public and other policy opinion it brings about, as well as by the specific cases and examples it engenders.
So we are seeing already public organisations being more open. Releasing material not in response to requests, but because they know that the climate of policy and the climate of opinion has changed. Because they know that a decisive change did take place on January 1 this year. Because they know that the ratchet of government has moved on a significant notch, and will not reverse. Once the progress is underway, it is impossible to go back. Because they know that cultural change is underway - and that they are a part of it.
Let me give you three specific examples. Take the police. On its website on police reform, the Home Office now proactively releases statistics showing how each police force is doing against key measures of police performance. Users can download statistics on their own local police force to see how they are doing against national standards.
Or take works of art. As Culture Secretary, Tessa Jowell has a responsibility for deciding which works of art of national importance should be allowed to be exported. Previously, when the grant of an export licence was deferred, very little information was given about the process of how that decision was reached.
Now, with FOI acting as a spur to explain decisions publicly, the Department for Culture, Media and Sport will publish on its website the notes of case hearings, details of discussions and statements by the export advisers involved in the original decision.
Or rather than looking to other departments across Whitehall - take, if I might, my own department. We have had a very long haul with the Government's key Constitutional Reform Bill, which has now - finally - reached its House of Commons stages, and which will reform the office of the Lord Chancellor, establish a Supreme Court and establish an independent Judicial Appointments Commission. I believe we have published a good deal of information already on the bill, but today we are going further. Today my department's website now includes information on the bill which has not been published before, including policy papers outline plans for establishing the Supreme Court, a paper covering the history of the Law Lords and the Lord Chancellor from the 1600s until the present day, and a draft consultation paper on the Judicial Appointments Commission. Huge rafts of material which would never have been published save for the Freedom of Information Act.
Change like this in a culture where certainly discretion and perhaps even secrecy have been dominant is tough. We knew that when we decided to take this step. In preparation for introducing freedom of information here, we looked and looked hard at what has happened overseas, in other countries which already have freedom of information provisions.
More than 50 jurisdictions already have real, live experience - some over a considerable period of time - of freedom of information. How it has worked in these countries has and will continue to help us ensure that FOI is properly implemented and properly working in this country.
A clear and particular lesson from overseas is that for it to work fully, properly and well, freedom of information needs leadership. Leadership and management not just in the lead-up to its introduction, but in the months and indeed years which follow.
I believe we are giving that leadership. I and my ministerial colleagues in the Department for Constitutional Affairs are giving political leadership in the department, and with my colleagues in other departments, across government. We introduced, as a government, freedom of information. We are committed to freedom of information. We will give leadership and work hard to ensure freedom of information is a success.
And we are giving leadership operationally too. Last autumn, my department provided clear and comprehensive guidance aimed at officials and lawyers in government departments. We are committed to keeping this guidance fully up-to-date in the light of emerging case-law and live experience of how it works.
My department has also established a central clearing house to assist in dealing with complex requests for information. The clearing house acts as an expert advice centre from which advice on the appropriate application of Freedom of Information can be sought by officials in central government departments.
And within each government department we have senior leadership on FOI - from Ministers and from Board level officials who champion the legislation and its objectives.
And across Whitehall, we are continuing to build a community of practitioners. These practitioners, I believe, are critical to our success, and I pay tribute to the work they have already done to implement this legislation in practice.
In short, we are in this for the long haul. We have no intention of simply leaving this statute on the shelf and waiting to see what happens. Our job, now that the act is in force, is clear. We must make it work. But we must also make sure that people know it is working.
We must improve public understanding and awareness of the basic rights that Freedom of Information provides.
We must also communicate the necessary balance that Freedom of Information strikes. Communicating that, in individual cases, we need to look at the balance between effective government and open government, as I have sought to do today, in this lecture.
If we lose this public focus, the risk is that Freedom of Information merely becomes a tug of war between central government and the media, and that the public feels excluded. That the public feels that Freedom of Information is merely the preserve of a privileged few in the Westminster village.
Freedom of Information, I emphasise again and again, is for everyone, not just the politicians and the journalists. We will strive to make this a reality. Empowering the citizen to use their rights to find out the facts for themselves about the issues that matter to them.
To achieve this, we must make the Act as simple to use as the legislation allows.
The administrative challenge is great, but I am confident we will meet it.
Britain has a wealth of experience on which we will build.
For Britain, openness is not a foreign country, suddenly discovered. The ground for FOI has been prepared, since the passage of the Act - but, more incrementally, over the last couple of decades.
Many parts of the British public sector already have extensive experience of openness regimes, whether statutory or administrative, such as the Data Protection Act and the Code of Practice on Access to Government Information.
But the kind of change which freedom of information obviously is will not be achieved overnight. We know it will be a tough job. Opening up the public sector to a proper, statutory, legal, right to know will be a huge task.
How will we know whether we are making progress ?
Clearly, I want more people to have access to more information. That's what freedom of information is all about. But I don't think the right measure of freedom of information is a simple quantification of FOI releases - important though that is.
I think instead that we need to consider how we are doing on three fronts.
First, delivery. Are we providing to requestors good quality decisions, on time ? Are we meeting the requests under the legislation that people are making ? Are we providing information within the time limits set out in the Act? Are we making real progress on putting information into the public domain before it is requested? Are we answering legitimate demand ?
Second, customers. What do users make of their experience of freedom of information ? How has it been ? Has it worked ? Have there been problems ? Have there been successes ? Are people getting the information they want to have ? Is experience of the legislative positive ? Is it helping people, for example, to make decisions on how best to use public services ?
And thirdly, the public. Is there awareness of freedom of information ? Is it growing ? Are people using their information rights ? Do people see evidence of greater openness ? Is that greater openness making a difference to people's experience of being a citizen, and to the way government is doing its job on their behalf ? Is decision making by government getting better ?
I will want to see these kind of indicators expressed clearly and the results reported publicly. But I want to ask all parties - advocates of freedom of information, as well as our critics - not to rush to early judgement. None of us should claim victory over decisions in individual cases, nor on the basis of early statistics. This is about profound, long-term change.
Freedom of Information is here for the long-term. So I also urge you to judge its success over the long-term.
This Government, and my Department, is intent on spearheading this process of change. We've done a lot, and we've achieved a lot to get this far. But what we've achieved so far is only the beginning. We have got a lot more to do.
I believe that, over time, freedom of information will bring about a real change in the quality as well as the quantity of information in the public domain.
Over time, freedom of information will improve the quality, accuracy and completeness of the public debate.
And over time, freedom of information will lead to greater transparency and accountability in government, making services more responsive to the public.
So I believe a new chapter in openness has begun.
The challenges are clear. The benefits are real.
Freedom of information that is customer focussed, user-friendly, providing high quality decisions that are properly explained.
Freedom of information that engages the public, that the public understands and sees as a useful tool, not just a political football.
And, when judging its success, that there is an informed debate about the impact of freedom of information. Not as a short-term fix. But as a serious, long-term transition towards greater openness.
This is a challenge. A tough challenge. Tough - but right. These are objectives worth striving for: openness. Transparency. Engagement.
Hard to secure. Important ambitions, I believe, to have. Our job - with your support, and your encouragement, for the benefit of everyone throughout this country - is to get on, and make Freedom of Information work.